EDISON, NJ – State Superior Court Judge James P. Hurley, presiding in New Brunswick, dismissed the Edison Board of Education’s lawsuit against the township Zoning Board and Markim Developers, ruling the school board lacked legal standing to file the action and that it could not provide supporting evidence for claims against the Zoning Board.
The lawsuit was brought by the Board of Education based on the approval by the Edison Zoning Board of a multi-unit dwelling at 144 Harding Ave. The application was made by Markim Developers.
On March 26, the Edison Zoning Board approved an eight unit housing project for the property. Currently, the property is a single family home. The project approved by the Zoning Board includes eight three bedroom apartments.
Calling the Zoning Board’s decision questionable, the Edison Board of Education authorized the lawsuit in April arguing that the construction of multi-unit residential units is exacerbating what has been termed Edison’s “school overcrowding crisis.”
But the developer’s attorney argued that the overcrowding of schools should not be considered, stating that there was no evidence of harm since the District could place trailers or alternatively raise taxes.
“That’s their real complaint, at core, that they don’t have enough money because they could always put a trailer out there. They could always spend the money for a trailer, then they would have an adequate school facility,” argued Richard Schkolnick from the law firm of Brown, Moskowitz, and Kallen on behalf of defendant, Markim Developers, according to a transcript of the oral arguments made in the case.
“My son went to kindergarten in a trailer. They could always do that. So what they’re doing is
exactly what the case law said they’re not supposed to do. They’re really stepping in the shoes of tax payers and arguing we don’t have enough money. We don’t have enough money,” he continued.
The Zoning Board initially denied the variance in October 2018, but one member who voted against the project, Edison Board of Education Member Ralph Errico, was subsequently disqualified and replaced on the Zoning Board. The October vote was voided based on Mr. Errico's disqualification, and a new hearing date was granted to Markim. Ultimately, the application was approved.
“Take it to the governing body. Try to raise taxes. But to put what they assert is a constitutional claim that they can’t educate their school kids because they don’t have enough funds, they don’t have enough money to put out another trailer, that it is a constitutional type argument, but that’s a broad political argument for the tax payers,” argued Mr. Schkolnick.
Attorneys for the Township Zoning Board joined the argument with the developers attorney, stating that the Board of Education lacked standing on the issue.
“The Zoning Board is grateful that Judge Hurley clearly recognized this lawsuit was without merit and without proof. Simply put: The school board had no legitimate basis to file this lawsuit,” said Zoning Board attorney Bhavini Tara Shah in a statement after the Court’s decision was issued.
But it’s not clear the matter is fully decided, since the Board of Education may still appeal the lower court’s decision.
“We’re disappointed in the Court’s ruling, which effectively insulates the Zoning Board of Adjustment from having to account for its arbitrary decision in this case and others," said Edison Board of Education attorney Ramon Rivera.
The Markim project is one of several ongoing residential units that were recently built, are presently under construction, or seeking approval by various developers in Edison:
220 apartments on Jackson Avenue.
8 new homes on Harding Avenue, in addition to the Markim project.
5 new homes on Ethel Road.
7 new homes on Tamagnini Ct.
13 new homes on Denver Road.
3 new homes on Oak Tree Road.
170 residential units in Camp Kilmer
40 units on Woodbridge Avenue
14 units on Central Avenue
"My clients will consider all their legal options, including an appeal, which we recommend as we disagree with the court’s decision. This fight may just be starting,” said Mr. Rivera.